Red Bull (Australia) Pty Ltd and Secretary, Department of Agriculture, Fisheries and Forestry
[2011] AATA 157
•10 March 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 157
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2010/3182
GENERAL ADMINISTRATIVE DIVISION ) No: 2010/5263
ReRed Bull (Australia) Pty Ltd
Applicant
And Secretary, Department of Agriculture, Fisheries and Forestry
Respondent
DECISION
TribunalMr R P Handley, Deputy President
Date10 March 2011
PlaceSydney
DecisionThe Tribunal affirms the decisions of the Secretary of the Department of Agriculture, Fisheries and Forestry that s 10 of the Trans‑Tasman Mutual Recognition Act 1997 (Cth) does not apply to the consignments of Red Bull energy drinks sought to be imported by Red Bull (Australia) Pty Ltd.
.....................[sgd]....................
Mr R P Handley
Deputy President
CATCHWORDS
CUSTOMS AND EXCISE – importation into New Zealand - Trans-Tasman Mutual Recognition Arrangement – goods unloaded and reloaded in course of transit – goods not subject to New Zealand customs control – ordinary meaning of ‘imported into New Zealand’ – goods not imported - Trans-Tasman Mutual Recognition Act (Cth) does not apply - decisions under review affirmed
WORDS AND PHRASES – ‘imported’, ‘importation’, ‘imported into New Zealand’
RELEVANT ACTS
Trans-Tasman Mutual Recognition Act 1997 (Cth): ss 3, 10, 11
Imported Food Control Act 1992 (Cth): s 3
Customs and Excise Act 1996 (NZ): s 2
Acts Interpretation Act 1901 (Cth): s 15AA
CITATIONS
R v Bull (1974) 131 CLR 203; (1974) 3 ALR 171; (1974) 48 ALJR 232
He Kaw Teh v R (1985) 157 CLR 523; (1985) 60 ALR 449; (1985) 59 ALJR 620; (1985) 15 A Crim R 203; [1985] HCA 43
K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309; (1985) 60 ALR 509; (1985) 59 ALJR 658; (1985) 2 MVR 289; (1985) 3 ANZ Ins Cas 60-653; (1985) Aust Torts Reports 80-323; [1985] HCA 48
OTHER AUTHORITIES
Trans-Tasman Mutual Recognition Arrangement 9 July 1996
Australian Concise Oxford Dictionary (5th ed)
Macquarie Concise Dictionary (3rd ed)
Australia New Zealand Food Standards Code 20 December 2000
REASONS FOR DECISION
| 10 March 2011 | Mr R P Handley, Deputy President |
Red Bull (Australia) Pty Ltd (the Applicant) has applied for the review of two decisions of a delegate of the Secretary of the Department of Agriculture, Fisheries and Forestry (the Respondent) to issue an ‘imported food inspection advice’ identifying a consignment of Red Bull energy drinks as “failing food”, meaning that it had not passed inspection by the Australian Quarantine and Inspection Service (AQIS). The effect of such an advice is that the goods must be destroyed, re-exported, or re-labelled to meet applicable standards.
Background
The Applicant is an importer of Red Bull energy drinks (the goods) which are manufactured in the United States of America (USA). A consignment of the energy drinks was shipped from the USA on the Callao Express and arrived in New Zealand in December 2009. The consignment was unloaded on the dock in Auckland and then loaded onto another vessel, the Antonia Schulte, and shipped to Australia, arriving in Sydney on or about 18 December 2009. The consignment did not clear New Zealand customs and was never intended for the New Zealand market.
On 4 January 2010, the consignment was referred for random inspection by AQIS. On 16 February 2010, AQIS notified the Applicant that the product had been identified as “failing food”, as defined in s 3 of the Imported Food Control Act 1992 (Cth) (the IFC Act) and requiring that the goods be destroyed or re-exported under AQIS supervision or relabelled in accordance with the IFC Act prior to reinspection by AQIS. The applicable standards that the goods failed to meet were those set out in the Australian New Zealand Food Standards Code (the Code).
The Applicant asserted that the product did not have to comply with the Code because it was subject to the Trans‑Tasman Mutual Recognition Act 1997 (Cth) (the TTMR Act) which provides in s 10 that goods imported into New Zealand, that may lawfully be sold in New Zealand, may be sold in Australia without the need to comply with further requirements. The Respondent replied that the goods did not appear to have been imported into New Zealand and requested that the Applicant provide documentation to support its assertion that the goods had been imported into New Zealand in accordance with the TTMR Act.
By email dated 28 May 2010, AQIS notified the Applicant that it had been decided that the goods were “failing food” because they were not subject to the TTMR Act and did not meet the applicable standards in the Code: in particular, the caffeine content of the goods exceeded that permitted and the goods did not have country of origin labelling. On 11 June 2010, the Applicant applied for a reconsideration of this decision and supplied further documentation and submissions.
On 13 July 2010, a delegate of the Respondent decided to affirm the initial decision that the goods were “failing food”. The delegate found that the goods were not imported into New Zealand in accordance with the TTMR Act:
… the transitory unloading of goods in New Zealand for reshipment to Australia – where New Zealand authorities have not considered whether the goods are acceptable for sale – does not constitute the importation of those goods into New Zealand for the purposes of the TTMR Act.
I also consider that the requirement of the TTMR Act that the goods “may lawfully be sold in New Zealand” is not satisfied in circumstances where the goods have not been cleared by New Zealand customs.
On 30 July 2010, the Applicant filed an application for a review of the decision with the Tribunal.
On 25 October 2010, AQIS notified the Applicant that it had been decided that another consignment of Red Bull energy drinks which had arrived in Brisbane from New Zealand were “failing food” because, for the same reasons as with the earlier consignment, they were not subject to the TTMR Act and did not meet the applicable standards in the Code. By letter dated 10 November 2010, the Applicant requested that the Respondent reconsider this decision and, on 22 November 2010, a delegate of the Secretary confirmed the initial decision. On 6 December 2010, the Applicant applied to the Tribunal for a review of this decision.
At the request of the parties, the Tribunal agreed that the two applications for review should be dealt with together.
Issues and Legislation
The parties agree that there are two issues for the Tribunal to determine in this matter: (1) whether the goods were “imported into New Zealand”, and, if so, (2) whether the goods “may lawfully be sold in New Zealand” for the purposes of s 10 of the TTMR Act.
Section 3 of the TTMR Act states:
3 Principal purpose
(1) The principal purpose of this Act is to enact legislation authorised by the Parliaments of States under paragraph (xxxvii) of section 51 of the Commonwealth Constitution, and requested by the legislatures of the Australian Capital Territory and the Northern Territory, for the purpose of recognising within Australia regulatory standards adopted in New Zealand regarding goods and occupations.
(2) The legislation is as contemplated by the Trans‑Tasman Mutual Recognition Arrangement entered into on 9 July 1996 between the Commonwealth of Australia, New Zealand, the States of New South Wales, Victoria, Queensland, Western Australia, South Australia and Tasmania, the Australian Capital Territory and the Northern Territory.
The objectives of the Trans‑Tasman Mutual Recognition Arrangement are set out in paragraph B of the Arrangement:
B. The objective of the Arrangement is to remove regulatory barriers to the movement of Goods and service providers between Australia and New Zealand, and to thereby facilitate trade between the two countries. This is intended to enhance the international competitiveness of Australian and New Zealand enterprises, increase the level of transparency in trading arrangements, encourage innovation and reduce compliance costs for business.
Relevantly, ss 10 and 11 of the Act state:
10 Entitlement to sell goods
The Trans‑Tasman mutual recognition principle is that, subject to this Part, goods produced in or imported into New Zealand, that may lawfully be sold in New Zealand, either generally or in particular circumstances, may, by virtue of this Act, be sold in an Australian jurisdiction either generally or in particular circumstances (as the case may be), without the necessity for compliance with further requirements imposed by or under the law of that jurisdiction as described in section 11.
11 Requirements that do not need to be complied with
The further requirements referred to in section 10 are any one or more of the following requirements relating to sale that are imposed by or under the law of the Australian jurisdiction concerned:
(a) a requirement that the goods satisfy standards of the jurisdiction relating to the goods themselves, including for example requirements relating to their production, composition, quality or performance;
(b) a requirement that the goods satisfy standards of the jurisdiction relating to the way the goods are presented, including for example requirements relating to their packaging, labelling, date stamping or age;
(c) a requirement that the goods be inspected, passed or similarly dealt with in or for the purposes of the jurisdiction;
(d) a requirement that any step in the production of the goods not occur outside the jurisdiction;
(e) any other requirement relating to sale that would prevent or restrict, or would have the effect of preventing or restricting, the sale of the goods in the jurisdiction.
The word ‘imported’ is not defined in the Act and the phrase ‘may lawfully be sold in New Zealand’ is not otherwise explained. The interpretation of these provisions in the context of the TTMR Act has not, according to the parties, been the subject of previous decisions of either the Tribunal or the courts.
Were the Goods Imported into New Zealand?
Submissions
With regard to the first issue, whether the goods were “imported into New Zealand”, the Applicant contends that these words should be interpreted according to their natural or ordinary meaning. Mr Preston, for the Applicant, referred to the dictionary definition of ‘to import’ in the Australian Concise Oxford Dictionary (5th ed), namely to “bring in (esp. foreign goods or services) to a country”. Similarly, in the Macquarie Concise Dictionary (3rd ed), the primary meaning of ‘to import’ is defined as “to bring in from a foreign country, as merchandise or commodities, for sale, use, processing, or re-export”.
Mr Preston said neither definition implies any need for administrative requirements to be met, such as clearing customs. He referred to the decision of the High Court in R v Bull (1974) 131 CLR 203 (Bull). In that case, Barwick CJ said, at 212:
The question is not what constitutes importation in an abstract or universal sense: the question is when, according to the provisions of the Act, are goods imported into Australia. However, in general, importation of goods, in my opinion, according to the natural meaning of the words, involves landing them, or bringing them within a port for the purpose of landing them in the country or place in relation to which importation is regulated.
The Chief Justice went on to say, at 213, that it was necessary to examine the Act (the Customs Act 1901 (Cth)) “in order to discover what meaning is required by the statute to be given to the expressions ‘import into Australia’ and ‘importation into Australia’”. Gibbs J, with whom Mason and Stephen JJ agreed on the relevant legal issues, said, at 254:
It does not conform to ordinary usage to say that goods are imported into a place if they are brought there in the course of transit but with no intention that they should be unloaded there. For example, in ordinary understanding goods would not be thought to have been imported into Australia if they were carried through the waters within three miles of the Australian coast by a ship which did not put into port. Even if goods are brought into port they are not necessarily imported; for example, a cargo being carried from England to New Zealand is not imported into Australia when the ship on which it is carried puts into an Australian port en route: Wilson v. Chambers & Co. Pty. Ltd. [1926] HCA 15; (1926) 38 CLR 131, at pp 138-139, 147, 150 .
The Applicant also referred to the definition of the word ‘importation’ in the Customs and Excise Act 1996 (NZ) meaning “the arrival of the goods in New Zealand in any manner, whether lawfully or unlawfully, from a point outside New Zealand”. Thus, the Applicant contended, the goods had been imported by the time they were unloaded onto the dock in Auckland. Mr Preston said that the fact that the goods were subsequently to be exported does not affect the fact of their importation into New Zealand.
The Respondent contends that the ordinary meaning of the word ‘import’ in the context of the statute “carries with it an intention that goods be brought into New Zealand for a greater purpose than reshuffling the cargo on the wharf and placing it on another vessel bound for Australia”. Referring to the quotation from Barwick CJ’s judgment in Bull, above, the Respondent notes that “the country or place in relation to which importation is regulated” is not New Zealand because the goods were never presented to the New Zealand authorities, and thus there was no importation according to the ordinary and natural meaning of the word, into New Zealand.
The Respondent contends that the word ‘imported’ is to be interpreted in its legislative context: the issue is whether the goods were imported for the purposes of s 10 of the TTMR Act. How the word ‘import’ is defined in the New Zealand legislation is irrelevant. The word should be interpreted consistently with the underlying purpose of the TTMR Act set out in s 3(1). The Respondent submits:
the objectives of the TTMR Act support an interpretation of ‘import’ that involves some regulatory oversight by New Zealand sufficient to enable it to be satisfied that the goods concerned are acceptable for sale in New Zealand.
The goods must be presented to and cleared by the New Zealand authorities as being acceptable for sale.
Mr Bird, for the Respondent, said there must be an intention to use the goods in New Zealand. He referred to the High Court decision in He Kaw Teh v R (1985) 157 CLR 523 (He Kaw Teh), a case involving the importation of drugs into Australia in contravention of the Customs Act 1901, where, at 595-596, Dawson J said:
To import goods is to bring them into the country from abroad: Lyons v. Smart [1908] HCA 34; (1908) 6 CLR 143, at p 150. But if the goods are merely passing through en route to some place outside the country, they are not imported. Thus in Reg. v. Bull [1974] HCA 23; (1974) 131 CLR 203 it was held that goods are not imported into Australia within the meaning of s. 233B(1)(b) of the Customs Act until they are landed or brought within the limits of a port with the intention of landing or discharging them. Moreover, importation connotes a commercial purpose or at least an intention to use or consume the goods.
Where the goods have been presented to and cleared the New Zealand authorities (there being an intention to use the goods), the purpose of the legislation is to avoid unnecessary duplication by not requiring that the goods also be assessed and inspected for compliance with Australian regulatory standards. Thus, the unloading of goods onto the wharf from one vessel and their reloading onto another vessel bound for Australia does not constitute the importing of goods into New Zealand.
Reasoning
The principles of statutory interpretation require that when the ordinary or natural meaning of words is being considered, the context in which the words are used in the legislation must also be taken into account: see, for example, K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309, per Mason J at 315. This is also clear from what Barwick CJ said in Bull, at 213 (referred to above), that it is necessary to examine the statute in order to discover what meaning is to be given to the relevant words, which, in that case, were ‘import into Australia’ or ‘importation into Australia’.
An examination of the TTMR Act reveals that the ‘purpose’ of the Act is set out in s 3. Section 3(1) refers to “recognising within Australia regulatory standards adopted in New Zealand regarding goods and occupations”. Section 3(2) refers to the Trans‑Tasman Mutual Recognition Arrangement, paragraph B of which, quoted above, states that its objective is to reduce regulatory barriers, including reducing compliance costs for business.
Thus, in terms of s 10, once goods produced in or imported into New Zealand have met the regulatory requirements to enable those goods to be lawfully sold in New Zealand, they may also be sold in an Australian jurisdiction without the need to comply with further regulatory requirements.
In this instance, the goods were not intended for sale in New Zealand and were not subjected to New Zealand customs control. Whether the goods complied with New Zealand regulatory requirements was never tested and so requiring the goods to comply with the Code in Australia does not mean a duplication of the application of regulatory barriers. In my view, the situation in this case is not essentially any different from that outlined by Gibbs J in his judgment in Bull, at 255, quoted above. The only difference between his example - where he says that goods are not imported into Australia when the ship on which the goods are carried puts into an Australian port en route for their ultimate destination in New Zealand - and the situation in this case, is that the goods were offloaded from one ship in Auckland Harbour and then loaded onto another ship in the course of transit to Australia. The goods were not brought into New Zealand for the purpose of the sale or use of those goods in New Zealand.
In my view, the ordinary meaning of the words ‘imported into New Zealand’ when considered in the context of the Act should be construed as meaning that the relevant goods must have been brought into New Zealand for the purpose of something happening to those goods – for them to be used - in New Zealand, such as their being sold. This is consistent with what Dawson J said He Kaw Teh. It does not include a situation where there is no intention that the goods should be used in New Zealand and where the goods are merely in transit to another country. The fact that no attempt is made to seek clearance from New Zealand customs for those goods to be used in some way in New Zealand is clear evidence of that intention which is not, in any event, in dispute.
I am also satisfied that, in accordance with s 15AA of the Acts Interpretation Act 1901, this interpretation is one that accords with the purpose or object underlying the TTMR Act stated in s 3, which, relevantly, is to reduce compliance costs for business by avoiding unnecessary duplication of regulatory requirements in New Zealand and Australia. I agree with the Respondent that how the word ‘importation’ is defined in the Customs and Excise Act 1996 (NZ) is not in this case relevant to how the word ‘imported’ should be construed in the TTMR Act.
Thus, I am satisfied that the goods were not imported into New Zealand and s 10 of the TTMR Act does not, therefore, apply. Having so determined, it is unnecessary for me to decide the second issue, that is whether the goods “may lawfully be sold in New Zealand” for the purposes of s 10 of the TTMR Act.
Decision
The Tribunal affirms the decisions of the Respondent that s 10 of the TTMR Act does not apply to the consignments of Red Bull energy drinks sought to be imported by the Applicant.
I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RP Handley, Deputy President.
Signed: .............[sgd].............................................................
A Veness, Associate
Date of Hearing: 23 February 2011
Date of Decision: 10 March 2011
Applicant representative: Mr C Preston, Legal Finesse
Respondent representative: Mr J Bird, Blake Dawson
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